Plaintiffs’ Counsel From the NSA Responds To MOBN Post

Last month, Make Oakland Better Now! published board member Paula Hawthorn’s analysis of the latest report by monitor Robert Warshaw, observing that Warshaw continued to find Oakland and its police department out of compliance with the NSA for acts and omissions not covered by the Court’s order. As one example, Ms. Hawthorn observed that the monitor was citing officers’ failure to activate their video cameras, cameras that didn’t exist when the NSA was issued by the Federal Court.

Attorney Jim Chanin, who with John Burris represents the plaintiffs, requested an opportunity to respond, and we agreed. His views follow:

I write in response to the recent Oaktalk posting concerning the City of Oakland Negotiated Settlement Agreement (NSA).

The post author cites several areas of concern:

The extent to which the Police Department is complying with the NSA including core issues like early identification of problem officers, racial profiling, reporting misconduct by officers and use of lapel cameras to record interactions with the public.

The qualifications of the federally appointed monitor and his team

The cost of implementing the Agreement

I am adding one more area: the political will of City leaders to implement the Agreement

Let’s start with the OPD’s compliance with the Agreement. The author argues that the standards for compliance keep changing. Not so. There are two parts to compliance: the first is putting in place the policy or system to address a shortcoming followed by the second, actually implementing those policies or systems on a daily basis throughout the organization. In some cases, the City has met the first criteria but has yet to implement them consistently.

A good example of doing the first but not the second can been seen with Reporting Misconduct (aka Task 33). In 2012 Judge Thelton Henderson issued a court order requiring systems be put in place that resulted in a reduction of serious complaints. Clearly, enforcing the existing OPD order that officers wear and use lapel cameras would resolve many complaints. When the Agreement was written 12 years ago, these cameras didn’t exist. Now they are a staple of modern Policing. In fact, then Chief Batts strongly recommended this as a way to reduce ‘frivolous complaints’. There is no doubt if officers knew their conduct was being video recorded and citizens knew that their complaints would be decided by a video of what really happened, that complaints would be reduced. The problem is that some officers failed to turn their cameras on or ‘the cameras broke’ during critical interactions with the public and then were not appropriately disciplined for failing to use the cameras.

Here is another example. Span of Control (aka Task 20) the concept behind this is to ensure that each set of officers has a clear supervisor who is ultimately responsible for the quality of their work. This is a big shift from the pre-2000 system where officers were haphazardly supervised with little accountability, management and mentoring. For ten years the city has not put this system in place. It took the Compliance Director telling the Department to hire or promote enough sergeants to supervise officers to get into compliance for them to act – 10 years after the requirement went into effect. This process has just concluded and there is every promise that the OPD will be in compliance by the end of this year.

Here is another one. Vehicle Stops, Field Investigations and Detentions (aka Task 34). This task requires that police stops should be for a legitimate law enforcement reason, not because of the race of who is being stopped. The Blog states that since most crime victims and criminals are Black and Hispanic and since most of the stops involve people of these races, “we will never be in compliance with this”. The issue is not who is stopped. The issue is that the people stopped should be stopped for a legitimate law enforcement reason. If there is a legitimate law enforcement – not racial – reason for the stop, the fact that the person is Black or Hispanic is not an issue. But if officers are poorly trained and supervised it’s easy to slip into racial profiling.

The two most egregious cases of racial profiling were the Riders’ Case where officers planted drugs on 129 residents, who then ended up serving 40 years in jail for crimes they did not commit. 128 of 129 people in that case were African American. Six years later, we had the “warrants case” where the Oakland Police Department itself concluded that 2 out of 3 drug warrants over a 6 year period were based on false information or perjury. 99 of the 100 victims in this case were not white. These cases and systemic failures like them are not a “cost of doing business” in other cities with large minority populations.

We are not asking that the OPD be perfect when it stops suspected criminals. We do insist that massive lawsuits involving dozens of minority citizens and systemic civil rights violations can be stopped by proper supervision, supervisory accountability, and discipline when appropriate. It has worked in other cities, and it can work here. Moreover, stopping fewer innocent people frees up officers to go after the people who are really committing the crimes and increases respect for law enforcement in the areas where the OPD needs reliable witness and community cooperation.

Then there is the system to flag problem officers early for additional training, supervision and management (aka Task 40-41). In 2006, year 5 of the Agreement, the city set up a computer system that simply did not work, at a cost of millions to taxpayers. (see the Auditor’s report on this). Of necessity, we became more hands on and the new system in development will identify “outliers” who need some sort of intervention before they become a problem to themselves, the public, and a huge public liability for the City. Of note, this system is supported by both the Oakland Police Officers Association and the Plaintiffs’ Attorneys. It will no doubt pay for itself in reducing the massive lawsuits that have plagued the OPD for years. Many cities utilize these systems to reduce their risk of expensive litigation. The failure for Oakland’s system to come in to compliance at this point (Detroit is in compliance for this same task with Mr. Warshaw monitoring them) is no fault of the NSA.

Now let’s talk about the authority of the federally appointed Monitor. Until 2012 all the Monitor and Plaintiffs’ Attorneys had the authority to do was to find the Police Department ‘out of compliance’ and complain about it. The police department would then ignore their continued non-compliance until the next report. After 9 years of this we asked the City of Oakland to give the Monitor the authority to order changes to come into compliance. The City refused to allow any increased powers for the Monitor of any kind. John Burris and I were forced to file a motion to put the department into receivership since it was clear that the City and the OPD lacked the political will to implement the reforms they had repeatedly promised to do. After it became clear that we would win at least part of our motion, the City proposed a “Compliance Director” who was ultimately given more powers than we had suggested years before. A year later the Compliance Director is gone and the Monitor has the authority we requested 2 years ago. The City of Oakland has only itself to blame for the resulting duplication and expenditure for the Compliance Director.

The post criticizes the current Monitor (the last one—who was generously paid– quit after years of trying to get OPD into compliance). I’ll be frank. John Burris and I were not initially in favor the city’s proposal to bring Chief Robert Warshaw and his team in as the new Monitor. They all came from law enforcement and we wondered whether they would be able to give the department the ‘tough love’ it so badly needed. However, after we did our own checking with a number of cities under similar federal decrees, we were pleased and a little surprised to find that the Warshaw team had been successful in bringing them into compliance and they enjoyed the respect of city leaders and the Police. With a record of completing compliance agreements in many places, Chief Warshaw is slowly but surely doing the same for Oakland. We don’t always agree with him but we have faith in him and his team.

The author notes the expense of the Monitor and the money paid for the Negotiated Settlement Agreement (NSA). John Burris and I each agreed to be paid $5000/year maximum each for the first five years of the NSA and $10,000/year for years six and seven if necessary. We have donated hundreds of hours work to help the OPD attain compliance. As for payments to the Monitor, we agree that this is not an insignificant amount of money. However, the couple of million dollars needed to bring the department into compliance pales next to the $55 Million the city has paid out over the past decade for police misconduct – nearly twice what the cities of SF and San Jose have paid combined! Can you imagine the number of new officers and updated equipment that money could have paid for instead to going to avoidable and preventable police misconduct payouts?

We’ve heard the complaining by elected officials and some citizen groups that “too many cases are settled” and “we should try more cases”. Let’s examine that logic. You may remember Earth First activist Judi Bari whose case the city insisted on not settling – $4.4 M jury verdict. How about Torry Smith (he alleged the police planted a weapon in his house) who got a verdict of $6 Million after the city wouldn’t make a decent settlement offer. And it’s not just misconduct cases. Jan Glenn Davis, a former Oakland Officer, won $2 Million at trial when the city refused a reasonable settlement in her discrimination case against OPD. Three trials, $12.4 Million. You can get a lot of settlements for $12,400,000.

So whose fault is this mess? The majority of police officers are doing a good job under difficult circumstances, yet a relatively small number of officers and supervisors are not being held accountable for repeated systemic failures in the OPD. The evaluation process is not as the blogger asserts “fundamentally flawed”. What is “fundamentally flawed” is the political will of the City of Oakland to comply with the NSA. All of us to some degree are culpable for not demanding accountability from OPD in the face of gross cases of civil rights abuses. Most of Oakland’s City Council members and the last three Mayors also bear responsibility. While these abuses were going on there was little or no outcry from our elected officials and no effort to demand accountability from the people at the top at OPD. This stands in contrast to other cities in California, including cities like Richmond, that have similar a racial and economic composition to Oakland but who have learned from lawsuits to make changes necessary to enforce the law in a tough, consistent and fair manner.

I want to close with a little history. The NSA was created not by a bunch of theoreticians experimenting in Oakland but by the OPD itself advised by the former head of the New York City Internal Affairs Bureau and a former Federal Monitor in Cincinnati. We were guided by former member of the San Jose Police Department command staff and a professional who wrote prison regulations for corrections institutions.

Even though the OPD alone proposed all of the timetables and compliance rates, John and I agreed to extend the timetables and lowered the compliance rates nearly every time they asked. We also agreed to concept of “Inactive Tasks” which has resulted in most of the NSA tasks not being monitored after one year of compliance. By contrast, Detroit has hundreds more tasks and all of them are actively monitored every quarter no matter how long those tasks have remained in compliance.

The one conclusion of the Make Oakland Better Now blog that is valid is that the NSA should end soon.

In fact, it should have ended long ago. However, its end will only come when the City is in real compliance with procedures that numerous cities such as Cincinnati, Prince Georges County (found in compliance by the Warshaw group years ago), and even Los Angeles, long a huge problem, have adopted and actually practice.

The OPD now has a command staff that appears (for the first time) to be really trying to obtain NSA compliance. If our elected leaders and citizenry stop tolerating huge civil lawsuit payouts and lack of compliance with standard police practices, far from being ‘hopeless’ as the author says, we will bring this sad chapter in Oakland to an end.

Jim Chanin is an attorney in private practice who brought the Rider’s case lawsuit with John Burris in 2000. He has been an Oakland resident for over 33 years.

2 responses to “Plaintiffs’ Counsel From the NSA Responds To MOBN Post”

“What is “fundamentally flawed” is the political will of the City of Oakland to comply with the NSA…Most of Oakland’s City Council members and the last three Mayors also bear responsibility. While these abuses were going on there was little or no outcry from our elected officials and no effort to demand accountability from the people at the top at OPD.”

Oakland cannot get “better” in any way until all, repeat all, ALL, the current crop of cognitively- and ethically-weak elected officials are long gone.

One example. Chanin writes, “The two most egregious cases of racial profiling were the Riders’ Case where officers planted drugs on 129 residents, who then ended up serving 40 years in jail for crimes they did not commit. 128 of 129 people in that case were African American.”

Assuming drugs were indeed planted rather than Chanin leaping to that conclusion, he says they served for crimes they did not commit. No, they served time for crimes they were not proved to have committed. If the Riders cops thought they could circumvent proof in a court, they were wrong – and Chanin is equally wrong to declare that therefore these 129 persons did not commit crimes.

Then Chanin repeats exactly the circular reasoning about racial profiling that Paula Hawthorn excoriated. Chanin states that (in the heart of west Oakland) all but one of these 129 persons were Black, therefore, they must be targets of racial profiling. Chanin gives no evidence that a portion of the drug dealers and gang enforcers of west Oakland are actually Punjabi and Norwegian, so obviously racial profiling was in effect.

And congratulations to John Burris for limiting his pay on the NSA case for the first seven years. Not congratulations for public service, but for his political savvy. He kept that pay down while the NSA helped him extort millions of dollars from beleagured and cowardly City officials.